[2017] KEHC 8241 (KLR)
The court found that the delay in filing the appeal was sufficiently explained by the appellant's counsel and that the reasons given were plausible. In compliance with Order 42 Rule 6 of the Civil Procedure Rules, the appellant offered to deposit the entire decretal sum as security. The court considered it fair and...
Source-derived case information.
- Citation
- [2017] KEHC 8241 (KLR)
- Parties
- Appellant: Tononoka Rolling Mills; Respondent: Roda Munyiva Kimeu; Respondent: Charles Nzioki Kimeu (suing as personal representative of the Estate of Robert Ndavi Kimeu, deceased)
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 139 of 2016
- Procedural Posture
- Civil Appeal / Ruling on Application for Stay of Execution and Leave to Appeal Out of Time
- Outcome
- Application allowed with conditions.
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Stay of Execution, Leave to Appeal Out of Time, Security for Decretal Sum
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Tononoka Rolling Mills
Appellant
Roda Munyiva Kimeu
Respondent
Charles Nzioki Kimeu (suing as personal representative of the Estate of Robert Ndavi Kimeu, deceased)
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Stay of Execution and Leave to Appeal Out of Time
Legal Issues
- 1 Whether the appellant should be granted leave to appeal out of time against the lower court judgment.
- 2 Whether a stay of execution of the judgment and decree should be granted pending appeal.
- 3 What conditions, if any, should be imposed for the grant of stay of execution.
Ratio Decidendi
The court found that the delay in filing the appeal was sufficiently explained by the appellant's counsel and that the reasons given were plausible. In compliance with Order 42 Rule 6 of the Civil Procedure Rules, the appellant offered to deposit the entire decretal sum as security. The court considered it fair and just that part of the decretal sum be paid to the respondents pending the determination of the appeal, with the balance to be deposited in a joint interest earning account. The application was allowed, granting leave to appeal out of time and stay of execution on the stated conditions.
Court Disposition
Application allowed with conditions.
Orders
- Leave granted to the appellant to file the appeal out of time.
- Record of appeal to be filed within 30 days of the ruling.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL APPEAL NO. 139 OF 2016
TONONOKA ROLLING MILLS …………...........................……. APPELLANT
VERSUS
RODA MUNYIVA KIMEU
and CHARLES NZIOKI KIMEU Suing as personal representatives of the Estate of
ROBERT NDAVI KIMEU (DECEASED)…..................................... RESPONDENT
RULING
The appellant herein was aggrieved by the Judgment of the lower court which awarded the respondents a sum of Kshs. 1,152,877/= being the total of several heads of damages. No appeal was lodged immediately and now there is before an application by way of Notice of Motion dated 24th March, 2016 seeking several orders among them that there be a stay of execution of the decree entered against the appellant on 11th December, 2015 b the lower court; that there be a stay of execution of the said judgment and decree pending determination of the appeal; that the appellant be granted leave to appeal out of time against the said judgment and that the memorandum of appeal dated 24th March 2016 be deemed as filed and served within the prescribed time.
The application is supported by grounds set out in the face thereof alongside an affidavit sworn by Paul Kariba the advocate for the appellant. The application is opposed and there is a replying affidavit sworn by Chalres Nzioki Kimeu who is one of the respondents.
Both learned counsel have filed submissions and cited some authorities which I have noted. At some stage counsel alluded to a settlement which however did not come through. It is not necessary for me to go through the entire argument presented by the parties for the following reasons. The delay in filing the appeal has been sufficiently explained by the counsel for the appellant.
I am persuaded that the reasons are plausible. So as to comply with order 42 Rule 6 of the Civil Procedure Rules, the appellants have offered to deposit the entire decretal sum in an interest earning account in the names of both counsels for the parties.
I have looked at the memorandum of appeal. Basically the main complaint is on quantum and whereas I appreciate the offer of security made by the appellant it is only fair and just the part of the decretal sum be paid to the respondents pending the determination of the appeal.
Accordingly I make the following orders. The application is allowed and leave granted to the appellant to file the appeal out of time. The record of appeal shall be filed within 30 days of today. There shall be a stay of execution of the judgment and the decree of the lower court provided that a sum of Kshs. 5,00,000/= is paid to the respondents and the balance of the decretal sum is deposited in an interest earning account in the names of both advocates appearing for the parties. The said payment to the respondents and the deposit of the balance aforesaid shall be done within 30 dyes from the date of this ruling. The costs shall be on appeal.
Orders accordingly.
Dated, signed and delivered at Nairobi this 1st Day of February, 2017
A. MBOGHOLI MSAGHA
JUDGE